In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐1678
SEYON R. HAYWOOD,
Plaintiff‐Appellant,
v.
JODY HATHAWAY,
Defendant‐Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09‐cv‐00807‐MJR‐SCW — Michael J. Reagan, Chief Judge.
____________________
ARGUED OCTOBER 30, 2013 — DECIDED NOVEMBER 29, 2016
____________________
Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.
PER CURIAM. Seyon Haywood, formerly an inmate at Illi‐
nois’s Shawnee Correctional Center, accused his auto mechan‐
ics teacher of attacking him. Guards charged him with mak‐
ing false statements. A disciplinary panel found him guilty
and ordered him transferred to segregation for two months;
the panel also revoked one month of good‐time credit. After
2 No. 12‐1678
these events he was transferred to a different prison, where he
remains in custody.
Haywood contends in this proceeding under 42 U.S.C.
§1983 that these penalties violate his right to speech, protected
by the Constitution’s First Amendment (applied to states by
the Fourteenth). He also alleges that the conditions of his con‐
finement in segregation were cruel and unusual, violating the
Eighth Amendment (again applied via the Fourteenth). The
district court dismissed the first claim on the pleadings and
granted summary judgment to defendants on the second. The
only defendant against whom Haywood still seeks damages
is Jody Hathaway, Shawnee’s Warden during Haywood’s time
there.
The district court dismissed the First Amendment claim
because the disciplinary panel’s decision, which affected the
duration of Haywood’s confinement, had not been set aside
on collateral review or by executive clemency. The Supreme
Court held in Heck v. Humphrey, 512 U.S. 477 (1994), that §1983
cannot be used to seek damages when relief necessarily im‐
plies the invalidity of a criminal conviction that remains in
force. Edwards v. Balisok, 520 U.S. 641 (1997), extends this ap‐
proach to prison discipline. Haywood offers two responses:
first, that his good‐time credits have now been restored, and,
second, that he has waived any challenge to the duration of
his confinement and therefore (he contends) should be al‐
lowed to seek damages.
Although Haywood maintains that his good‐time credits
were restored while this appeal has been pending, the forms
that Haywood has submitted show only the Department of
Corrections’s calculation of his projected release date, not
whether the disciplinary board’s decision has been vacated in
No. 12‐1678 3
the manner Heck and Edwards require. At all events, things
that happen after a district court’s decision do not demon‐
strate that the court erred. Heck and Edwards hold that a §1983
claim does not accrue until the conviction or discipline had
been set aside. Once that occurs, the prisoner has the time al‐
lowed by the statute of limitations (two years in Illinois) to
commence suit. A dismissal under Heck and Edwards is with‐
out prejudice to litigation after a conviction or disciplinary
sanction is annulled.
As for his waiver of any challenge to the duration of con‐
finement: that’s irrelevant because no matter what a prisoner
demands, or waives, §1983 cannot be used to contest the fact
or duration of confinement. See Preiser v. Rodriguez, 411 U.S.
475 (1973). From its outset, this suit has been a quest for
money damages. That’s not all. The holding of Heck and Ed‐
wards is that a claim under §1983 does not accrue as long as it
would imply the invalidity of a conviction or disciplinary
sanction that affects the duration of custody. If the claim has
not accrued, it cannot matter what relief a prisoner seeks. Yet
if it is possible to seek damages while waiving other relief, this
must mean that the claim accrues immediately and the statute
of limitations runs from the time of the events said to be
wrongful. That would surprise the many prisoners who wait
patiently until they are entitled to sue under Heck, for if Hay‐
wood is right the time to do so could have expired.
Haywood relies on Peralta v. Vasquez, 467 F.3d 98 (2d Cir.
2006), which held that a prisoner who foreswears any contest
to the length of his confinement may use §1983 to seek dam‐
ages. The Second Circuit understood “the purpose of the Heck
favorable termination requirement [to be] to prevent prison‐
4 No. 12‐1678
ers from using §1983 to vitiate collaterally a judicial or admin‐
istrative decision that affected the overall length of their con‐
finement”. 467 F.3d at 104. To disavow any collateral attack on
the conviction or revocation of good‐time credits is to take the
situation outside Heck, the court concluded. We do not agree
with that conclusion, which no other circuit has adopted
(though none has expressly rejected it, either).
Heck and Edwards say that a challenge is not possible as
long as it is inconsistent with the validity of a conviction or
disciplinary sanction. See also Nelson v. Campbell, 541 U.S. 637,
646 (2004): “a §1983 suit for damages that would ‘necessarily
imply’ the invalidity of the fact of an inmate’s conviction, or
‘necessarily imply’ the invalidity of the length of an inmate’s
sentence, is not cognizable under §1983 unless and until the
inmate obtains favorable termination of a state, or federal ha‐
beas, challenge to his conviction or sentence.” This is a version
of issue preclusion (collateral estoppel), under which the out‐
standing criminal judgment or disciplinary sanction, as long
as it stands, blocks any inconsistent civil judgment. See Simp‐
son v. Nickel, 450 F.3d 303 (7th Cir. 2006); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000); Carr v. O’Leary, 167 F.3d 1124 (7th Cir.
1999). It is a rationale considerably different from the one that
Peralta attributed to the Court.
In Wallace v. Kato, 549 U.S. 384, 392 (2007), the Justices em‐
phasized another of Heck’s rationales:
[Heck] analogized [the §1983] suit to one for malicious prosecu‐
tion, an element of which is the favorable termination of criminal
proceedings. [512 U.S.] at 484. We said:
“[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by ac‐
tions whose unlawfulness would render a conviction or sen‐
tence invalid, a §1983 plaintiff must prove that the conviction
No. 12‐1678 5
or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal author‐
ized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus, 28 U.S.C.
§2254. A claim for damages bearing that relationship to a con‐
viction or sentence that has not been so invalidated is not cog‐
nizable under §1983. Id., at 486–487 (footnote omitted).”
We rested this conclusion upon “the hoary principle that civil tort
actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments.” Id., at 486. “‘Congress,’” we
said, “‘has determined that habeas corpus is the appropriate rem‐
edy for state prisoners attacking the validity of the fact or length
of their confinement, and that specific determination must over‐
ride the general terms of §1983.’” Id., at 482 (quoting Preiser v. Ro‐
driguez, 411 U. S. 475, 490 (1973)).
Nothing in Heck, Edwards, or any of the Court’s later decisions
suggests that the “favorable termination” element that the
Court thought essential can be elided by a plaintiff’s disavow‐
ing a kind of relief that Preiser holds is never available under
§1983 in the first place. The approach taken in Peralta is in‐
compatible with Heck and its successors; Peralta is function‐
ally what would happen if the whole sequence were over‐
ruled and only Preiser left standing.
Peralta is incompatible not only with the Supreme Court’s
decisions but also with McCurdy v. Sheriff of Madison County,
128 F.3d 1144 (7th Cir. 1997), which held that a plaintiff cannot
sidestep Heck by conceding a conviction’s validity. Our deci‐
sion in Burd v. Sessler, 702 F.3d 429, 435–36 (7th Cir. 2012),
which holds that a prisoner cannot avoid Heck by waiting un‐
til the sentence expires and it is too late to file a collateral at‐
tack, also is irreconcilable with the Second Circuit’s view that
a §1983 suit for damages is permissible whenever it cannot
6 No. 12‐1678
end in a decision that changes the length of a person’s confine‐
ment. We decline to follow Peralta, which did not mention
McCurdy and therefore created a conflict among the circuits,
perhaps unintentionally. We shall stick with the established
law of this circuit.
Haywood’s Eighth Amendment claim is unaffected by
Heck. He contends that the cell in which he was held during
his 60‐day term of segregation had a broken window and that,
when the prison’s power failed during a storm in January
2010, the heat went off and the temperature fell below freez‐
ing. Haywood maintains that the guards refused to repair the
window or provide adequate clothing and blankets. Instead,
he asserts, the guards made conditions worse by turning on
the ventilation system (which he calls “the blowers”). Wind
aggravates the effect of cold by increasing the speed at which
heat is removed from exposed skin.
According to Haywood, power and heat were off for four
days, and when power was restored the cell remained frigid
and the guards continued to ignore his request to fix the win‐
dow or provide blankets, a coat, or any other means of
warmth. If circumstances were as Haywood asserts, then the
prison violated his constitutional rights. Dixon v. Godinez, 114
F.3d 640, 642 (7th Cir. 1997); Henderson v. DeRobertis, 940 F.2d
1055, 1059 (7th Cir. 1991). See also Petties v. Carter, 836 F.3d 722
(7th Cir. 2016) (en banc) (discussing standards of liability un‐
der the Eighth Amendment in medical‐care situations). There
may be reasons to doubt Haywood’s account—if the cell was
as cold and his clothing as skimpy as he relates, he would
have suffered frostbite or death, yet he is alive and whole—
but on motion for summary judgment we must accept the
declarations in his affidavit.
No. 12‐1678 7
The district court granted summary judgment not because
it discounted Haywood’s evidence or thought the conditions
acceptable, but because of the identity of the sole defendant:
the warden. Haywood did not sue (or, if he did sue, did not
serve) the guards and other persons responsible for climate
control. He sued only the top of the organization, and the dis‐
trict court concluded that the warden cannot be personally li‐
able under the Supreme Court’s decision in Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009), that organizational heads and other
supervisors are not vicariously liable for their subordinates’
misdeeds. They are liable for their own acts but not deriva‐
tively liable for other persons’ acts.
Farmer v. Brennan, 511 U.S. 825 (1994), supplies the sub‐
stantive rule of decision. There “the Supreme Court held that
prison officials have a duty to ‘ensure that inmates receive ad‐
equate food, clothing, shelter, and medical care.’” Estate of
Miller ex rel. Bertram v. Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012)
(quoting Farmer, 511 U.S. at 832). To determine whether an in‐
mate’s Eighth Amendment rights were violated by a depriva‐
tion, we examine the alleged violation both objectively and
subjectively. First, the deprivation alleged must be objectively,
sufficiently serious. Second, the mental state of the prison of‐
ficial must have been one of deliberate indifference to inmate
health or safety. See Petties, 836 F.3d at 728. The first element
is satisfied when the plaintiff shows that he was “incarcerated
under conditions posing a substantial risk of serious harm.”
Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). There
is no question that the circumstances described by Haywood
satisfy this element.
8 No. 12‐1678
To meet the second element, a plaintiff must show that
“‘the official knows of and disregards an excessive risk to in‐
mate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the infer‐
ence.’” Estate of Miller, 680 F.3d at 989 (quoting Sanville, 266
F.3d at 734. A plaintiff need not “prove that his complaints …
were ‘literally ignored,’; rather, he must show only that de‐
fendants’ responses to it were so plainly inappropriate as to
permit the inference that the defendants intentionally or reck‐
lessly disregarded his needs.” Hayes v. Snyder, 546 F.3d 516,
524 (7th Cir. 2008) (citation omitted) (quoting Sherrod v. Lingle,
223 F.3d 605, 611 (7th Cir. 2000)). Our en banc decision in Pet‐
ties took this approach to medical‐care claims, and it is equally
applicable to related claims under the Cruel and Unusual
Punishments Clause.
Haywood brought forth evidence in opposition to Warden
Hathaway’s motion for summary judgment that Warden
Hathaway knew both of the extreme cold in the segregation
unit and the causes of that cold. Specifically, the warden knew
of the ice storm that caused the prison to lose power, see R.87‐
4 (Warden Hathaway’s answers to interrogatories) at 16; he
was apprised that Haywood could not shut his window, see
R.1 at 19 (Emergency Grievance attached as exhibit to Com‐
plaint) (“There is lots of air coming in through the windows
because the seals on the outside are broken.”); and he person‐
ally toured the segregation unit at least once between January
and March 2009, see R.87‐4 at 22 (“Defendant did go to Segre‐
gation during this time frame [between January 9, 2009, and
March 9, 2009].”).
No. 12‐1678 9
The extent of the warden’s response to this information,
however, was that he “enured [sic] that the generators were
operating properly and had maintenance perform periodic
temperature checks.” Id. at 23. Nothing in the record indicates
how frequently Warden Hathaway had maintenance perform
temperature checks, whether those were performed during or
after the power outage, or, indeed, whether any were per‐
formed apart from the check of the unit on January 23—one
of the warmest days of the winter. Moreover, the fact that the
generators were operational would have little effect on the
temperature of the unit if, as Haywood testified, the windows
in the unit would not close. The warden’s “plainly inappro‐
priate” responses to Hathaway’s grievance, to the extreme
weather, and to the situation in the segregation unit allow the
inference that he was deliberately indifferent to the extreme
cold suffered by Haywood and the other prisoners. See Hayes,
546 F.3d at 524.
Our dissenting colleague reads Iqbal and Vance v. Rumsfeld,
701 F.3d 193 (7th Cir. 2012) (en banc), to support a contrary
result. We do not believe, however, that Iqbal or Vance alters
the standards set forth in Farmer v. Brennan. Indeed, Iqbal rec‐
ognizes that “[t]he factors necessary to establish a Bivens vio‐
lation will vary with the constitutional provision at issue.” 556
U.S. at 676. In Iqbal, the Bivens claim alleged was “invidious
discrimination” on the basis of race, religion, and national
origin “in contravention of the First and Fifth Amendments.”
Id. In such situations, the Court explained, “our decisions
make clear that the plaintiff must plead and prove that the
defendant acted with discriminatory purpose,” id., and “a su‐
pervisor’s mere knowledge of his subordinate’s discrimina‐
tory purpose” is not sufficient, id. at 677. Iqbal simply did not
10 No. 12‐1678
speak to standards of liability for Eighth Amendment viola‐
tions, for Iqbal had not made a claim under that provision,
and the Court certainly gave no indication of discontent with
the settled law set forth in Farmer. Moreover, even if it had
signaled an intent to depart from Farmer, the Supreme Court
has admonished us not to anticipate its future steps. See, e.g.,
Bosse v. Oklahoma, No. 15–9173 (U.S. Oct. 11, 2016) (collecting
authority).
This court’s decision in Vance is not without its ambigui‐
ties. But one thing is clear: it must be read to conform to
Farmer, the governing authority. It cannot be read, as the dis‐
sent does, as altering the standards of Farmer. In Vance, the
plaintiffs alleged “torture and cruel, inhuman, and degrading
treatment, … presented as Fifth Amendment substantive due
process claims,” Vance v. Rumsfeld, 653 F.3d 591, 594 (7th Cir.
2011), vacated en banc, 701 F.3d 193, and sought damages
from the former Secretary of Defense. The specific question
before the court was “whether the federal judiciary should
create a right of action for damages against soldiers (and oth‐
ers in the chain of command) who abusively interrogate or
mistreat military prisoners, or fail to prevent improper deten‐
tion and interrogation.” Vance, 701 F.3d at 195. We answered
this question in the negative. We further observed that “[e]ven
if we were to create a common‐law damages remedy against
military personnel and their civilian superiors, former Secre‐
tary Rumsfeld could not be held liable.” Id. at 203. We ob‐
served that
Farmer rejected a contention that wardens (or guards) can be liable
just because they know that violence occurs in prisons and don’t
do more to prevent it on an institution‐wide basis. To get any‐
where, Vance and Ertel would need to allege that Rumsfeld knew
No. 12‐1678 11
of a substantial risk to security contractors’ employees, and ig‐
nored that risk because he wanted plaintiffs (or similarly situated
persons) to be harmed.
Id. at 204. This dicta overstates Farmer’s holding. Farmer in‐
structs that the deliberate indifference standard “is satisfied
by something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result”:
We hold … that a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an exces‐
sive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substan‐
tial risk of serious harm exists, and he must also draw the infer‐
ence.
Farmer, 511 U.S. at 835, 837.
In any event, the standard articulated in Vance is satisfied
here. The evidence showed that Warden Hathaway had actual
knowledge of the unusually harsh weather conditions, that he
had been apprised of the specific problem with the physical
condition of Haywood’s cell (i.e., the windows would not
shut), and that, during the time period of Haywood’s com‐
plaint, the warden toured the segregation unit himself. These
facts establish that Warden Hathaway’s response was not
simply “plainly inappropriate,” but that Haywood’s com‐
plaints “literally [were] ignored” by the individual in the po‐
sition to remedy them. Hayes, 546 F.3d at 524 (internal quota‐
tion marks omitted).
In short, there simply is no evidence that, in Iqbal, the Su‐
preme Court overruled or limited Farmer. See Minneci v. Pol‐
lard, 132 S. Ct. 617, 625 (2012) (noting Farmer’s deliberate in‐
difference standard). Vance, as well, has no direct application
12 No. 12‐1678
to this case. Vance concerned the possibility of holding the cab‐
inet secretary of a federal department responsible for the im‐
plementation of policy at the individual level—a far cry from
holding the administrator of a single facility liable for known
deficiencies that directly threatened the welfare of prisoners
for whom he was responsible. See 730 ILCS 5/3‐6‐2 (“A chief
administrative officer shall be responsible for all persons as‐
signed to the institution or facility.”). Vance did not alter—nor
could it alter—the standards set forth in the Court’s Eighth
Amendment caselaw. Indeed, since Vance, we have continued
to apply Farmer to allegations of unconstitutional conditions
of confinement. See Townsend v. Cooper, 759 F.3d 678, 685, 689
(7th Cir. 2014) (applying Farmer to claims brought against the
warden and other prison officials who were involved in the
decision to impose a behavior action plan that resulted in un‐
constitutional conditions of confinement).
Consistent with our approach in Townsend, other courts of
appeals have determined that, post‐Iqbal, Farmer’s deliberate
indifference standard continues to govern claims of un‐con‐
stitutional conditions of confinement brought against super‐
visory prison officials. See Barkes v. First Correctional Medical,
Inc., 766 F.3d 307, 316–20 (3d Cir. 2014) (holding that deliber‐
ate indifference standard “for imposing supervisory liability
based on an Eighth Amendment violation is consistent with
Iqbal” and collecting cases), reversed on other grounds under
the name Taylor v. Barkes, 135 S. Ct. 2042 (2015) (holding that
defendants were entitled to official immunity and not ad‐
dressing the merits); see also Colwell v. Bannister, 763 F.3d 1060
(9th Cir. 2014) (applying Farmer’s deliberate indifference
standard to evaluate liability of prison official post‐Iqbal).
No. 12‐1678 13
The judgment is affirmed with respect to the First Amend‐
ment theory and reversed with respect to the Eighth Amend‐
ment theory. The case is remanded for proceedings consistent
with this opinion.
14 No. 12‐1678
EASTERBROOK, Circuit Judge, dissenting in part. I agree with
the court’s disposition of Haywood’s First Amendment claim
but not with its conclusion that Warden Hathaway can be per‐
sonally liable for cold temperatures in his cell.
Haywood seeks to hold the warden directly (rather than
derivatively) liable on the theory that he filed two grievances
alerting the warden to the cold. But Iqbal concludes that
knowledge is not enough.
[Respondent argues that supervisors] can be liable for
“knowledge and acquiescence in their subordinates’ use of dis‐
criminatory criteria to make classification decisions among de‐
tainees.” Iqbal Brief 45–46. That is to say, respondent believes a
supervisor’s mere knowledge of his subordinate’s [misconduct]
amounts to the supervisor’s violating the Constitution. We reject
this argument. Respondent’s conception of “supervisory liability”
is inconsistent with his accurate stipulation that [supervisors] may
not be held accountable for the misdeeds of their agents. In a
§1983 suit or a Bivens action—where masters do not answer for
the torts of their servants—the term “supervisory liability” is a
misnomer. Absent vicarious liability, each Government official,
his or her title notwithstanding, is only liable for his or her own
misconduct.
556 U.S. at 677. We applied this principle in Vance v. Rumsfeld,
701 F.3d 193, 203–05 (7th Cir. 2012) (en banc), when holding
that notice to the Secretary of Defense about subordinates’
misconduct did not expose the Secretary to damages for fail‐
ing to ensure that it stopped. The Secretary may be liable for
unlawful policies but does not guarantee that lawful policies
are carried out correctly. See also, e.g., Burks v. Raemisch, 555
F.3d 592 (7th Cir. 2009), which holds that prison officials who
receive and respond to prisoners’ grievances do not become
vicariously liable just because they fail to ensure that the
grievances are properly redressed. Just as a prison’s warden
No. 12‐1678 15
in Illinois is responsible for all employees, 730 ILCS 5/3‐6‐2, so
a Secretary of Defense has full authority over all of his subor‐
dinates. 10 U.S.C. §113(b). Yet Vance held that insufficient to
make the Secretary liable for failing to prevent their miscon‐
duct.
No one contends that Warden Hathaway had a policy that
authorized, or even tolerated, subjecting prisoners to freezing
temperatures. To the contrary, it is undisputed that, when he
received Haywood’s first grievance, he directed one of the
prison’s engineers to find out what was happening. The engi‐
neer told the warden that the temperature in Haywood’s cell
was 75° F, and the warden then dismissed the grievance. If the
engineer was lying, he might face liability, but it is impossible
to see how the warden himself could be liable—and that con‐
clusion would hold even if Iqbal had come out the other way
and held that supervisors can be liable just because they know
that subordinates are misbehaving. Haywood’s description of
the blowers as “torture” does not add anything, because air
movement at 75° is hardly an intolerable condition of confine‐
ment. And Haywood’s second complaint to the warden also
does not add anything, not only because of Iqbal but also be‐
cause the record shows that it did not reach the warden’s desk
until March 9, 2010, the day that Haywood was returned to
the general population. Nothing the warden did, or omitted,
in response to the second grievance could have affected Hay‐
wood.
Prisoners need to sue the persons responsible for the con‐
ditions of which they complain. A warden is an easy target—
his name is known, and it is easy to achieve service of process.
But decisions such as Iqbal and Vance mean that liability rests
with the people who injure prisoners; the top of a bureaucratic
16 No. 12‐1678
hierarchy is the wrong person to sue, unless the claim con‐
cerns the prison’s formal policies or other decisions that the
warden took personally.
I do not read Iqbal or Vance as incompatible with Farmer,
which did not address the question whether supervisors can
be liable for failing to cure problems created or ignored by
their subordinates. By contrast, Iqbal and Vance do address
that situation. We observed in Vance that a supervisor does not
become liable just because someone sends him a message no‐
tifying him that bad things are going on. That’s what plaintiffs
alleged in Vance, and a panel held the allegation sufficient, but
the en banc court held it legally insufficient. 701 F.3d at 203–
05. (Part IV of Vance, which announces this conclusion, cannot
be dismissed as dictum; it was an alternative holding. The fact
that a court gives two independently sufficient reasons for a
disposition does not mean that each is dictum because the
other would have sufficed; on that approach, the whole opin‐
ion could be dismissed as dictum.)
Vance shows that supervisors are entitled to delegate. The
top of an organization must be able to allocate duties without
being personally liable if subordinates mess up. Warden
Hathaway delegated. He sent an engineer to diagnose the sit‐
uation and fix any problem. The engineer reported that there
was no problem. Haywood chose not to sue the engineer, the
engineer’s subordinates, or the personnel who should have
repaired any broken window, but Haywood’s choice cannot
mean that the warden becomes personally liable for his sub‐
ordinates’ inaction or ineptitude.
My colleagues are among many federal judges who prefer
an approach under which notice to a supervisor is enough to
create personal liability. The Supreme Court encountered
No. 12‐1678 17
such an approach in Iqbal and disapproved it. When a panel
of this court adopted that approach in Vance, the court took
the case en banc and disapproved it. As my colleagues ob‐
serve, decisions in other circuits have continued to impose su‐
pervisory liability when notice does not lead to a remedy.
They cite Barkes v. First Correctional Medical, Inc., 766 F.3d 307,
320 (3d Cir. 2014), and Colwell v. Bannister, 763 F.3d 1060 (9th
Cir. 2014), and might have added a citation to Turkmen v.
Hasty, 789 F.3d 218, rehearing en banc denied, 808 F.3d 197 (2d
Cir. 2015). Barkes has been reversed on immunity grounds, 135
S. Ct. 2042 (2015), and the Justices did not tell us their view of
the merits; Colwell concerned supervisors’ policies and not
just failure to control subordinates, so its bearing on our dis‐
pute is doubtful; but Turkmen deals with both policy‐creation
and subordinate‐control in one package.
The grants of certiorari in Turkmen set the stage for a new
look at the question whether and when supervisors (includ‐
ing Hasty, a prison’s warden) can be liable for failing to pre‐
vent or rectify misconduct by guards and other subordinates.
See Zilgar v. Turkmen, No. 15–1358 (U.S. Oct. 11, 2016) (consol‐
idated with Ashcroft v. Turkmen, No. 15–1359, and Hasty v.
Turkmen, No. 15–1363). The sort of dispute represented by
Haywood’s Eighth Amendment claim is now in the hands of
the Supreme Court. Turkmen may be decided on other
grounds (the lead argument is that the Second Circuit erred
in implying a Bivens remedy against supervisors, while §1983
supplies an express remedy in our case), but even so Turkmen
may reflect on the circumstances under which heads of organ‐
izations who are alerted to problems but don’t fix them can be
liable for that failure. They ducked in Barkes, a summary re‐
versal, but may conclude that resolution is due in Turkmen,
which will be briefed and argued.